R v CJP

[2003] NSWCCA 187

CITATION:	Regina v CJP; Regina v CAD; Regina v MES [2003] NSWCCA 187 revised - 10/12/2003
HEARING DATE(S):	28 May 2003
JUDGMENT DATE:	21 July 2003
JUDGMENT OF:	Sheller JA at 1; Hidden J at 1; Carruthers AJ at 1
DECISION:	See pars 73-75 of judgment.
CATCHWORDS:	Criminal law - sentencing - Crown appeals - pleas of guilty - whether sentences endorsed by District Court Judge, in the absence of the parties, on Committal for Sentence Form validly imposed - delay of three months between imposition of sentences and publication of reasons - requirement for sentences to be accompanied by contemporaneous reasons emphasised - whether any sentences validly imposed - necessity for all matters to be remitted to the District Court.
LEGISLATION CITED:	Crimes Act 1900 ss 4, 61J, 61J(1), 61N(1), 66C(1), 66C(2), 78L, 345, 580E(2), 580E(4) Crimes (Sentencing Procedure) Act 1999 ss 22(2), 22(4), 32, 33, 44, 62(1), 70, 70(3) Criminal Appeal Act 1912 s12(2) District Court Rules Pt31 r9
CASES CITED:	AB v The Queen (1999) 198 CLR 111 Ebatarinja v Deland (1998) 194 CLR 444 Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Jago v District Court (NSW) (1989) 168 CLR 23 Kunnath v The State [1993] 1 WLR 1315 Lawrence v The King [1933] AC 699 Pearce v The Queen (1998) 194 CLR 610 Pettit v Dunkley [1971] 1 NSWLR 376 Public Service Board (NSW) v Osmond (1986) 159 CLR 656 R v Cornwell [1972] 2 NSWLR 1 R v Julie Ann Duffy [1999] NSWCCA 321 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v JCE (2000) 120 A Crim R 18 R v Jones (No 2) (1972) 1 WLR 887 Richmond Newspapers v Virginia 448 US 555 (1980) Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
PARTIES :	Regina v CJP; Regina v CAD; Regina v MES
FILE NUMBER(S):	CCA 60030/03; 60031/03; 60032/03
COUNSEL:	Crown - G.I. Rowling Respondent CJP - H. Dhanji Respondent CAD - J.P. Butland Respondent MES - J. Stratton
SOLICITORS:	Crown - S.E. O'Connor Respondent CJP - D.J. Humphreys Respondent CAD - Bilias & Associates Respondent MES - Velcic & Company

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/3265; 01/21/3324; 01/21/3318
LOWER COURT JUDICIAL OFFICER :	His Honour Acting Judge Moore

60030/03
60031/03
60032/03

SHELLER JA
HIDDEN J
CARRUTHERS AJ

Monday, 21 July 2003

REGINA v CJP

REGINA v CAD

REGINA v MES

Judgment

1 THE COURT: On 7 February 2003, the Director of Public Prosecutions lodged in the Court and served notices of appeal dated 5 February 2003 against the alleged inadequacy of sentences pronounced by his Honour Acting Judge Moore at the Campbelltown District Court on 4 December 2002 upon CJP, CAD and MES. The three matters had been heard together by his Honour.

2 The notices of appeal came before this Court on 28 May 2003, when the Court raised with counsel for each of the parties certain jurisdictional and procedural problems. The matters were then adjourned to allow the parties to make written submissions in relation to these questions. It is necessary for the resolution of these problems to consider the relevant background.

3 On 24 June 2002 at Liverpool Local Court CJP pleaded guilty to each of the following charges:

(a) that between 18 October 2000 and 27 October 2000 at Macquarie Fields he did have sexual intercourse with ELP, a child between the age of ten and sixteen years, namely thirteen years; and
(b) that between 17 October 2000 and 27 October 2000 at Macquarie Fields he did have sexual intercourse with ELP, a child between the age of ten and sixteen years, namely thirteen years;
in each case contrary to the provisions of s 66C(1) of the Crimes Act 1900 (the Act). The maximum penalty for each offence at the time of its commission, was imprisonment for a term of eight years;
(c) that between 14 November 2000 and 15 November 2000 at Macquarie Fields, he did have sexual intercourse with ELP without her consent and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, to wit, that at the time of the offence the said ELP was a person aged under the age of sixteen years, being in fact aged thirteen years of age;
(d) that between 14 November 2000 and 15 November 2000 at Macquarie Fields, he did have sexual intercourse with ELP without her consent and knowing that she was not consenting to the sexual intercourse in circumstances of aggravation, to wit, that at the time of the offence the said ELP was a person aged under the age of sixteen years, being in fact aged thirteen years of age; and
(e) that between 14 November and 15 November 2000 at Macquarie Fields he did have sexual intercourse with GS without his consent and knowing that he was not consenting to the sexual intercourse, in circumstances of aggravation, to wit, that at the time of the offence the said GS was a person aged under the age of sixteen years, being in fact aged thirteen years of age; in each case contrary to the provisions of s 61J of the Act. The maximum penalty for each at the time of its commission was imprisonment for twenty years.

4 The respondent was committed for sentence accordingly.

5 In November 2002 at Campbelltown District Court the respondent adhered to his pleas and asked that the following offences be taken into account, pursuant to a Form 1 under the provisions of s 32 and s 33 of the Crimes (Sentencing Procedure) Act 1999, when being sentenced for the offence set forth in par (c) above under s 61J of the Act:

(a) that on or about 14 November 2000 at Macquarie Fields he did incite GS a person under the age of sixteen years, namely thirteen years, to perform an act of indecency towards him, contrary to the provisions of s 61N(1) of the Crimes Act 1900;
(b) that on or about 14 November 2000 at Macquarie Fields he did have sexual intercourse with SD without her consent in circumstances of aggravation, namely that at the time of the offence she was under sixteen years of age, namely ten years, contrary to the provisions of s 61J(1) of that Act;
(c) that on or about 15 November 2000 at Macquarie Fields he did attempt to have homosexual intercourse with GS, he being ten to eighteen years, namely thirteen years, contrary to the provisions of s 78L of that Act;
(d) that between 1 January 2000 and 15 November 2000 he did have sexual intercourse with GS without his consent knowing he did not consent in circumstances of aggravation namely he being under the age of sixteen years, namely thirteen years, contrary to the provisions of s 61J(1) of that Act; and
(e) that between 1 January 2000 and 15 November 2000 he did have sexual intercourse with GS without his consent knowing he did not consent in circumstances of aggravation namely he being under the age of sixteen years, namely thirteen years old, contrary to the provisions of s 61J(1) of that Act.

6 On 8 April 2002 CAD was arraigned before his Honour Judge Sides QC at the Campbelltown District Court upon an indictment containing three counts, each of which was in the following terms:

(a) that between 1 January 2000 and 15 November 2000 at Macquarie Fields she did have sexual intercourse with GS, without his consent, knowing that he was not consenting and being a person under the age of 16 years namely 13 years; and in the alternative to each of the three charges;
(b) that between 1 January 2000 and 15 November 2000 at Macquarie Fields she did have sexual intercourse with GS, a child then between the age of 10 years and 16 years, namely 13 years.

7 CAD pleaded not guilty to the three counts as set out in paragraph (a) being charges contrary to s 61J of the Act; and guilty to those counts as set out in paragraph (b) being charges contrary to s 66C(1) of the Act.

8 The Crown accepted those pleas of guilty in full discharge of the indictment then presented.

9 On 4 March 2002, MES was arraigned before his Honour Judge Sides QC at the Campbelltown District Court upon an indictment in the following terms:

(a) that between 30 January 1999 and 30 December 1999 at Macquarie Fields she did have sexual intercourse with GS, without the consent of GS, knowing that he was not consenting and in circumstances of aggravation, namely that GS was under the authority of the respondent; and, in the alternative
(b) that between 30 January 1999 and 30 December 1999 at Macquarie Fields she did have sexual intercourse with GS, he being a child between the age of 10 and 16 and under the authority of the respondent;
MES pleaded not guilty to the major count and guilty to the alternative count. The Crown accepted the plea of guilty in full satisfaction of the indictment then presented.

10 On 29 November 2002, at Campbelltown District Court MES asked Acting Judge Moore to take into account on a Form 1 the following offence:

That between 17 October 2000 and 27 October 2000 she did aid and abet CJP to have sexual intercourse with ELP, a child between the ages of 10 and 16 years under his authority, contrary to the provisions of ss 66C(2) and 345 of the Act.

Proceedings on 29 November 2002.

11 On 29 November 2002, all three respondents appeared before Acting Judge Moore for sentence at Campbelltown District Court, when Mr Wagstaff appeared for the Crown, Mr Keaney for CJP, Mr Butland for CAD and Mr Velcic for MES. Relatively brief oral evidence was given by CJP, and documentary material relevant to sentence was tendered on behalf of each respondent. The matters were then stood over “for sentence” on 4 December 2002. All respondents were remanded by his Honour to appear on that day.

Proceedings on 4 December 2002.

12 When the matters came before his Honour on 4 December, the appearances were as before, and the three respondents were personally present.

13 It is now necessary to refer to certain passages from the transcript of proceedings on that day.

14 At the outset, his Honour said:

“HIS HONOUR: There are some matters which I need to just elucidate with counsel just to make sure what I’ve been considering is correct. I propose to give the sentences at 2 o’clock. As my reasons will need to be expressed with considerable care they won’t be ready in that form at two and I propose to deliver them in the morning. Is there any objection to my going about the matter in that way. I should give reasons at the time the sentences are announced I truly acknowledge. But as your clients have been brought here today and they’re anxious to get their sentences – I shall at least indicate at 2 o’clock what they will be tomorrow. But I thought that they may not want to come back tomorrow just to hear the reasons which will be typed and sent to them.
KEANEY: I just missed the last bit your Honour. You said the reasons will be typed --
HIS HONOUR: The reasons will be typed and sent to them so you can get some instructions between now and 2 o’clock. In any event at 2 o’clock I’ll indicate what the sentences are I have in mind and your clients can either come back tomorrow and hear them or not. So get some instructions about that.”

15 His Honour then raised certain aspects of the charges with the parties and the relevant factual background. The parties had each provided his Honour with written submissions.

16 His Honour then said:

“HIS HONOUR: So what I’ll do at 2 o’clock then is one of two things. I’ll either indicate what I propose the sentences to be and stand them over till tomorrow or I will formally sentence at 2 o’clock and deliver written reasons in the morning. But the latter course would require the consent of everybody involved because I should deliver reasons at the time I announce the sentence. But it may save bringing your clients here if they don’t want to come back and simply want – they will get it. I will fax a copy to their legal representatives at once in the morning. So let me know at 2 o’clock what your clients want.”

17 Following further discussion between his Honour and counsel, the luncheon adjournment was taken.

18 Upon resumption there was further brief discussion between his Honour and counsel. The transcript of the proceedings then reads as follows:

“HIS HONOUR: One way or the other I’ll give an indication now of what I’m going to say in the morning or else I will actually sentence him now and he need not come back tomorrow, that’s the point of it.
VELCIC: Your Honour we’d prefer now.
KEANEY: My instructions are the same your Honour. We’d prefer to avoid coming back tomorrow if possible and happy to go with that.
HIS HONOUR: Mr Butland what do you have to say?
BUTLAND: I have concurred with my friends. I would be in difficulties tomorrow like my friends.
HIS HONOUR: These are the sentences. For [CJP] the aggregate sentence would have been one of 12 years imprisonment. It is reduced because of your plea of guilty to 9 years. Because of special circumstances that will be subdivided into a period of 6 year non-parole period and an additional term of 3 years. The commencing date will be 28 November 2000.
In the case of [MES] the sentence originally arrived at is one of 4 years which I reduce for your plea of guilty to 3 years and for special circumstances there will be a non-parole period of 2 years. I recognise the fact that you’ve spent 2 years in gaol and therefore I reduce each of those periods by a further 21 days so that your sentence will be one of a total term of 2 years 344 days with a non-parole period of 1 year and 344 days and I direct that you be released to parole at the expiration of the non-parole period subject to the standard conditions and the supervision conditions.
In the case of [CAD] I will stand this matter over for an assessment by the Probation and Parole Service (sic) your suitability for period (sic) detention. If that can be done this afternoon I would like to have that done if it’s possible.
BUTLAND: Your Honour I did take the opportunity to re-read the pre-sentence report dated 30 May from Tanya Bevan and she says at point 4 on the last page the offender has been assessed as suitable for period detention order as per the requirements of s 66(1) of the Crimes et cetera and has signed an undertaking as required by the Act.
HIS HONOUR: The pre-sentence report has (sic) somehow not amongst the papers that I have.
BUTLAND: I’m quite happy to tender my copy to the Court. That aspect was covered.
HIS HONOUR: I was assuming that there wasn’t one because we had a psychiatrist’s report I assumed that we didn’t have one.
Very well in the case of [CAD] her sentence is one of two years, taking into account all the features of your plea of guilty and the element of your volunteering your crime to the authorities, modified by the fact that it was stimulated by the letter from [CJP] I direct that that sentence should be served by way of periodic detention and there will be a non-parole period of 1 year. I will formally pronounce the order when we have an indication of where periodic detention is available.”

19 After some discussion regarding periodic detention facilities for CAD, his Honour indicated that his associate would make inquiries as to the availability of an appropriate centre.

20 After a brief adjournment, the transcript reads:

“HIS HONOUR: The only available centre is the Norma Parker Centre at Parramatta. I take it that’s convenient to your client if she lives at --
BUTLAND: Entirely convenient about a 15, 20 minute walk from the station.
HIS HONOUR: Very well. I sentence you to imprisonment for 2 years with a non-parole period of 1 year both periods commencing today. I direct that you – sorry both periods commencing on 14 December 2002. I direct that you report to the Norma Parker Centre at number 1 Fleet Street, Parramatta at 8.30 am on Saturday 14 December and thereafter at 7.00 pm each Friday. I direct that you be released to parole on 13 December 2003 in accordance with the standard conditions and the supervision conditions. I pass that sentence on counts 2 and 4 in the indictment. On count 6 in the indictment I defer passing sentence conditional on your entering into a bond under s 9 of the Crimes Sentencing Procedure Act to be of good behaviour for two years and to appear and receive sentence if called on. The bond is further conditioned on your accepting the supervision and treatment from Dr Jeremy O’Dea or from (sic) and accepting any other treatment to which you are directed by your supervisor.
Did I say supervision by Probation and Parole Service. And I direct that you – and subject to your reporting to the Probation and Parole Office at Campbelltown within 7 days.”

21 Despite the fact that his Honour had indicated that he would give reasons for sentence on 5 December, the matters did not come back before the Court until 28 February 2003 when his Honour handed down a document referred to as “Remarks on Sentence”. It will be necessary to refer to that document at a later stage of the judgment.

22 Insofar as CJP is concerned it is clear from the above excerpts that although CJP stood to be sentenced for a total of five charges, two of sexual intercourse with a child between ten and sixteen years, and three of aggravated sexual intercourse without consent, his Honour merely expressed the sentence to be nine years imprisonment, with a non-parole period of six years, to date from 28 November 2000. Indeed, that is the “sentence” identified in the Crown notice of appeal dated 5 February 2003. It is perfectly clear, however, that his Honour’s pronouncement in this regard cannot be taken to be a valid sentence embracing each of the five offences.

23 If the matter had remained there, problems would have arisen, in particular, with regard to the issue of the appropriate warrant of commitment of CJP pursuant to s 62 of the Crimes (Sentencing Procedure) Act 1999. Section 62(1) provides that as soon as practicable after sentencing an offender to imprisonment a court must issue a warrant for the committal of the offender to a correctional centre. Such warrant must be in or to the effect of the form prescribed by the regulations and signed by a Justice (subs 2).

24 A copy of the warrant is not before this Court. However, this Court was provided with an endorsement dated 4 December 2002 on the committal for sentence form. That endorsement is in the following terms:

“Count 1. (Taking Form 1 into account.) 8 years imprisonment commencing: 28 Nov 00 ending 27 Nov 08 .
Count 2. 6 years imprisonment, commencing: 28 Nov 00 ending 27 Nov 06 .
Counts 3 & 4. 6 years imprisonment commencing 28th Nov 03 ending 27 Nov 09 .
I find special circumstances. Aggregate non-parole period of 6 years, commencing 28 Nov 00 ending 27 Nov 06 .
Eligible for Parole 27 Nov 06 .
Offences on Form 1 taken into account on Count 1.”

25 It appears clear then that after the Court adjourned on 4 December 2002, his Honour, in the absence of the parties, and their legal representatives, sought to impose sentences in relation to each of the counts to which the respondent CJP had pleaded guilty. The individual “sentences” involve an aggregate head sentence of nine years with an aggregate non-parole period of six years, as indicated earlier by his Honour in open court.

26 There are respectfully two errors of law in this document. First, his Honour indicated that he took into account the offences on the Form 1 document on count 1. The term “count” is inappropriate because as these were committals for sentence from the Local Court, no indictment was found. In any event it is clear that his Honour was there taking the offences on the Form 1 into account in relation to the first matter under s 66C(1) of the Act, whereas the Form 1 document required those offences to be taken into account under the first offence under s 61J of the Act. This is of particular significance because the maximum penalty, as has been noted, for an offence under s 66C(1) is eight years whereas the maximum for an offence under s 61J is twenty years.

27 Secondly, it was not open to his Honour to impose an aggregate non-parole period of six years commencing on 28 November 2000: see s 44 of the Crimes (Sentencing Procedure) Act.

28 The threshold question is whether CJP was lawfully sentenced on 4 December 2002.

29 In our view the answer must be in the negative. Lawrence v The King [1933] AC 699 (Privy Council) is long standing authority for the proposition that a judge has no jurisdiction after the discharge of the jury and in the absence of the accused to alter the sentence recorded at the trial, even if the term of imprisonment is not effectively altered but distributed among the counts so as to avoid exceeding the maximum punishment on some of them. Lord Atkin, speaking for the Board, said (at 708):

“But in addition to this vital defect in the procedure up to verdict there has to be considered the alteration and recording of the sentence in the absence of the accused. It is an essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused; and for this purpose trial means the whole of the proceedings, including sentence. There is authority for saying that in cases of misdemeanour there may be special circumstances which permit a trial in the absence of the accused, but on trials for felony the rule is inviolable, unless possibly the violent conduct of the accused himself intended to make trial impossible renders it lawful to continue in his absence. The result is that sentence passed for felony in the absence of the accused is totally invalid. In the present case a double error has been made. In the first place the general sentence of three years’ imprisonment is invalid, for it is applicable to each count, and for the offences charged in the counts for false accounting the maximum punishment is two years. If the matter rested here it would appear that upon case stated the appellate Court under s 171 of the Criminal Procedure Ordinance would have had power to reverse, affirm or amend the judgment. But unfortunately the learned judge in chambers in the absence of the accused and apparently at the request of the Solicitor-General varied the sentence on the record, by substituting on the record a sentence of one year’s imprisonment on the third count and two years’ imprisonment on the fourth count to run consecutively, and corresponding sentences on the remaining counts for false accounting and larceny all to run concurrently with the sentences on the counts 3 and 4 with each other. The warrant of commitment recites this sentence as being that which the sheriff is directed to carry into execution according to law.”

30 The Crown’s argument (in its additional submissions) is that the above principles have no application in the instant case because of the abolition by s 580E(2) of the Act of all distinctions between misdemeanours and felonies. Section 580E(4) provides that subject to the regulations, in any Act or instrument:

“(a) a reference to a felony is to be taken to be a reference to a ‘serious indictable offence’.”

31 Section 4 of the Act defines a serious indictable offence to mean “an indictable offence that is punishable by imprisonment for life or for a term of five years or more”.

32 In this context we are of the view that the principles in Lawrence necessarily apply to serious indictable offences such as those under consideration in the instant case.

33 Lawrence has been applied by this Court in R v Cornwell [1972] 2 NSWLR 1. More recently it was applied by the Privy Council in Kunnath v The State [1993] 1 WLR 1315 where the Privy Council emphasised that:

“It is an essential principle of the criminal law that a trial for an indictable offence should be conducted in the presence of the defendant.”

34 The above passage was cited by the High Court in Ebatarinja v Deland (1998) 194 CLR 444 at 454.

35 Lawrence is still the law in England: see Halsbury’s Laws of England, vol II(1), Fourth Edition Reissue at par 1053, and the cases there cited.

36 No question arises here as, for example, in R v Jones (No 2) (1972) 1 WLR 887 of the offender voluntarily absenting himself from the proceedings.

37 That being so the “sentences” imposed on CJP on 4 December 2002 by his Honour were in circumstances “in which the judge had no possible jurisdiction”, to use the expression of Lord Atkin in Lawrence.

Proceedings on 28 February 2003.

38 It is convenient now to consider the events of 28 February 2003, to which reference has already been made.

39 The transcript for that day commences with the notation: “(Remarks on Sentence handed down in document form and not sound recorded)”.

40 The document, which consists of forty-two pages, commences:

“ Apology
1. I apologise for the delay in giving these reasons. The cause of the delay is stated at the end of these reasons.”

41 The concluding portion of the document reads:

“ Explanation for the delay in giving these Remarks on Sentence
116. This is only the second time in my judicial career that I have not delivered Remarks on Sentence either at once or on the morning following the hearing. Each time the delay was due to my mistake. In the present case the hearing finished on 4 December 2002. I said I would deliver reasons next morning, and excused the parties.
117. I prepared the reasons that evening. That period, at the end of term, was a particularly busy one. Next day the matter was not put in the written list. It was a busy day. I overlooked delivering the reasons. To my shame I record that, as time passed, I thought I had delivered the reasons, and at the end of term I went on vacation believing I had no outstanding matters. The parties were so courteous as not to enquire from the Registry until this month, which led to my recovering my reasons from the comprehensive notes I made on 4 December 2002. This is no excuse and a sorry explanation.
118. I have now only dictated what I had ready for 5 December 2002, without any addition.
119. I repeat my apology to all who are affected. There should not have been this added stress in these difficult matters.”

42 As is evident, the document was handed down after the Crown had filed and served its notices of appeal. There is nothing to indicate who was present in court at the time the document was handed down. There is certainly no suggestion that the respondents were present in person.

43 It is convenient first to consider certain aspects of the document which refer to CJP. Having considered in some detail the various submissions that were put to his Honour both by the Crown and counsel for CJP, the document states in relation to CJP:

“54. It is important where possible, and specially important in this case, to indicate clearly the allowance for a plea of guilty. The technique I am about to follow is not simply to adopt a ‘two-tiered’ approach criticised, for example, in AB v The Queen (1999) 198 CLR 111, by McHugh J, but expressly not by Kirby J. It is in accordance with the Court of Appeal’s decision in Thomson and Houlton.
55. I assess first the sentences had there been no plea of guilty. I take head sentences first. I pass sentence first on the third committal for sentence (crime (v)) as it calls in the Form 1. The Form 1 offences are not simply subsumed in crime (v) for sentencing. They require an increase. I indicate how I have made the increase.
Crime (v) alone – 5 years
Form 1 – allowances to be made to Crime (v)
Crime (iii) - 1 year, concurrent
Crime (viii) - 5 years, cumulative as to 1 year
Crime (iv) - 3 years, cumulative as to 1 year
Crime (ix) - 5 years, cumulative as to 1 year
Crime (x) - 5 years, cumulative as to 1 year
The total sentence for the third committal – 9 years.
For the first committal for sentence
(Crime (i)) - 5 years, cumulative as to 1 year
For the second committal for sentence
(Crime (ii)) - 5 years, cumulative as to 6 months
For the fourth committal for sentence
(Crime (vi)) - 5 years, cumulative as to 6 months
For the fifth committal for sentence
(Crime (vii)) - 5 years, cumulative as to 1 year
The total is twelve years. I reduce that for the plea of guilty, by 25 per cent, to nine years .
56. The statutory fraction to reach the non-parole period would produce six years nine months non-parole.
57. I find special circumstances -
(a) His demonstrated rehabilitation over the past two years, given that he has to prove that that will continue after his release.
(b) The good likelihood of his not re-offending, given his history, and antecedents, the medical evidence, his remorse and his genuine wish to follow professional assistance.
(c) The need for lengthy supervision at large after his release.
His being kept in strict protection is a factor sometimes allowed as a special circumstance. I have already reduced the head sentence for this. There is some overlap also in the head sentence considerations as to the factors (a) to (c) above. I shall only increase his eligibility for parole by nine months, as any greater increase would lead to an undue balance with the objective features. That is, the non-parole period is six years. The commencing date is the date [CJP] went into custody – 28 November 2000.
58. The sentences will be -
The third committal - 6 years 9 months
The first committal - 3 years 9 months, cumulative as to 9 months
The second committal - 3 years 9 months, cumulative as to 4-1/2 months
The fourth committal - 3 years 9 months, cumulative as to 4-1/2 months
The fifth committal - 3 years 9 months, cumulative as to 9 months
59. The current state of the legislative see-saw is that, where there are multiple sentences with cumulation, there must be individual specification of commencing and expiry dates of each head sentence and (this can cause other problems which do not arise here) non-parole period. An aggregate non-parole period commencing and expiry date cannot be the sole specification. My intention is that [CJP] should not be eligible for parole before 27 November 2006. Therefore as the sentence dates progress, with no alteration to the expiration of the non-parole period, the non-parole periods will be distorted. This is the additional special circumstance for their distortion.

Imprisonment	Commences	Expires	Non-Parole Period	Commences	Expires
Third Committal 6 y 9 mths	28.11.00	27.8.07	6 years	28.11.00	27.11.06 27.11.06
First Committal 3 y 9 mths	28.8.04	27.5.08	2 y 3 mths	28.8.04	27.11.06
Second Committal 3 y 9 mths	13.1.05	12.10.08	1y 10½ m	13.1.05	27.11.06
Fourth Committal 3 y 9 months	28.5.05	27.2.09	1 year	28.5.05	27.11.06
Fifth Committal 3 y 9 mths	28.2.06	27.11.09	9 mths	28.2.06	27.11.06 “

44 The Court notes immediately that the head “sentences” set out above do not correspond with the sentences set out in the endorsement to the committal for sentence document of 4 December 2002. The only consistency (if such it could be called) is that there is an aggregate head sentence of nine years with an aggregate non-parole period of six years.

45 However, a non-parole period is allocated to each specific offence in the table as distinct from the global non-parole period endorsed on the committal for sentence.

46 Further, his Honour has taken into account the offences in the Form 1 in the third committal for sentence matter and not in the first committal for sentence matter, as in the endorsement.

47 Whatever his Honour’s intentions may have been by the publication of this document, it cannot be taken to be the formal sentencing of CJP with accompanying reasons for sentence. Leaving aside for the moment what transpired on 4 December 2002, the “sentences” were not announced in open court and CJP was not present. There is nothing to indicate that he had voluntarily absented himself. The document cannot be treated as reasons for the “sentences” imposed on 4 December 2002 because no valid sentences were imposed on that date. In any event, as will be explained later, the “reasons for sentences” are too remote in time.

48 This leads to the exceptional and unfortunate consequence that at no stage has CJP been lawfully sentenced in the District Court with respect to the charges to which he pleaded guilty and for which he acknowledged responsibility in the Form 1 document. That being so, it is the view of this Court that the appropriate procedure is for this Court to remit the proceedings relating to the respondent CJP pursuant to the provisions of s 12(2) of the Criminal Appeal Act 1912 to the District Court with a direction that he is to be sentenced in accordance with the law and contemporaneous reasons are to be given.

49 It is convenient to deal generally with CAD and MES together. We have already referred to the remarks of his Honour on 4 December 2002 in relation to these two respondents. As at that date both CAD and MES were on bail, which was granted in the case of CAD on 15 May 2001 and in the case of MES on 29 November 2000.

50 The evidence discloses that CAD has been serving periodic detention since 14 December 2002, and MES has been serving the full time custodial “sentence” which was believed to have been imposed on 4 December 2002.

51 We return now to the document handed down by his Honour on 28 February 2003. After having referred to the objective and subjective circumstances in relation to CAD, his Honour said:

“ Sentence
115. You are convicted on the pleas of guilty. On counts two and four in the indictment, you are sentenced to imprisonment for two years to be served by periodic detention. I find special circumstances. Non-parole period of one year. Both terms to commence from 14 December 2002. I direct you be released to parole on 13 December 2003 subject to the prescribed conditions, the supervision conditions, and the special condition that you comply with the bond next specified. On count six, I defer passing sentence. I direct you enter a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act for two years from 14 December 2002, with the standard conditions and the special conditions that you accept the supervision of the Probation and Parole Service, and treatment from Dr O’Dea and any other treatment directed by your supervisor, and that you report to Campbelltown Probation and Prole Service (sic) within seven days.”

52 This “sentence” does not differ in terms from that purported to have been imposed on 4 December 2002. It is also consistent with the endorsement on that date by his Honour on the indictment relating to CAD.

53 In this context it is important to note, however, that the imposition of a sentence to be served by way of periodic detention cannot be backdated: see s 70 of the Crimes (Sentencing Procedure) Act 1999 which provides that where a court has made a periodic detention order in relation to a sentence of imprisonment, the court is to fix the date of the commencement of the sentence so that the date of commencement occurs no earlier than seven days, and no later than twenty-one days, after the date on which the order was made.

54 We have not overlooked in this context that s 70(3) provides that a periodic detention order is not invalidated merely because it specifies a date of commencement of the sentence of imprisonment that does not comply with the requirements of the section.

55 After having considered the objective and subjective circumstances relating to MES, his Honour stated in the document handed down on 28 February 2003:

“93. My mind has wavered as to whether I should increase the sentence for the first crime, by taking the second crime into account on Form 1. I have decided not to do so, for the same reasons as I would have made a concurrent sentence of three years if the second crime had been subject of a charge. The reasons are –
- she was a principal in the second degree
- [CJP] told her to remain, do nothing and be silent
- she went along with the offence because of fear of, and dependence on, [CJP], as was the case with the first crime
- she derived no sexual gratification, as was the case with the first crime
- although separate in time, nature and victim, both crimes were a function of her subjection to [CJP].
94. On the first crime, the sentence would have been four years, but for the plea of guilty. I reduce that by twenty-five percent, to three years, for the plea. For special circumstances I vary the parole period so that there is a non-parole period of two years. As there was twenty-one days pre-sentence custody, the sentence and non-parole period are reduced by twenty-one days.
95. You are convicted, and sentenced to imprisonment for two years 344 days, with a non-parole period of one year 344 days. Both periods commence 4 December 2002.
96. I direct your release to parole on 13 November 2004.”

56 This “sentence” is effectively the same as that purported to have been imposed on 4 December 2002 and the endorsement by his Honour on the indictment on the same date, except that on that earlier date no reference was made to the offence on the Form 1.

57 The threshold question which arises in the cases of both female respondents is whether they were validly sentenced by his Honour on 4 December 2002 bearing in mind that no reasons for sentence were delivered by his Honour on that day or proximately close in time to that day.

58 Both Mr Butland of counsel for CAD and Mr Stratton of counsel for MES submitted to this Court that the proceedings on 4 December 2002 were invalid because of the omission of his Honour to deliver contemporaneous reasons for the sentences which he purported to impose on that day.

59 As to the requirement of contemporaneity, Pt 31 r 9 of the District Court Rules states:

“Where the Court gives any judgment or makes any order and reduces to writing its reasons for the judgment or order, it is sufficient to state orally the judgment or order without stating the reasons, but the written reasons must then be given by delivering them to an Associate, or other officer specified by the Court, for delivery to the parties.”

60 This rule gives rise to difficulties of construction and has been considered at appellate level in a number of civil matters. Some of those judgments are not easy to reconcile and, despite their learning, do not provide any specific assistance for the resolution of the present problem. The leading civil cases are referred to in the District Court Procedure NSW at 6719-6722.

61 The question of the need for adequate reasons to be given when a sentence is delivered in a criminal case presents significantly different problems from those which arise in a civil case. Significantly, a criminal case involves the liberty of the subject and generally raises wider questions of public interest.

62 This Court has consistently emphasised the necessity for sentencing judges to give reasons when imposing sentences. Reference may be made to certain of the more recent judgments of this Court in that regard. In R v Julie Anne Duffy [1999] NSWCCA 321 Sully J said (with the concurrence of Ireland and Hidden JJ) at [11]:

“I wish to add the following observations: the Remarks on Sentence, as I said during submissions, are unhelpful in their brevity. It is not expected that a sentencing judge and particularly a sentencing judge in the District Court, will write an essay in jurisprudence every time he or she comes to deliver remarks on sentence. But it is, I think, timely to say that the Court expects that primary sentencing judges will at least state, however briefly, the findings of fact upon which they are persuaded to proceed; and will then expose in relation to those facts as found a coherent process of reasoning which will sufficiently equip this Court to intervene if asked to do so, and if a cause for doing so is otherwise shown.”

63 In R v Thomson; R v Houlton (2000) 49 NSWLR 383 Spigelman CJ was concerned with s 22(2) of the Crimes (Sentencing Procedure) Act which provides in relation to a plea of guilty:

“(2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.”

(With the concurrence of the other members of the Court) Spigelman CJ said at 394-395:

“[42] Sentencing judges are under an obligation to give reasons for their decisions. Remarks on sentence are no different in this respect from other judgments. This is a manifestation of the fundamental principle of the common law that justice must not only be done but must manifestly be seen to be done. The obligation of a court is to publish reasons for its decision, not merely to provide reasons to the parties: see F Kitto, ‘Why Write Judgments’ (1992) 66 ALJ 787; Pettitt v Dunkley [1971] 1 NSWLR 376 at 382; Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386; Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 666-667; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273, 277-281; Spigelman, ‘Seen to be Done: The Principle of Open Justice: Part 1’ (2000) 74 ALJ 290, especially at 294 and 295.
[43] The statement of reasons performs particularly significant functions in the administration of the criminal law. As Brennan J said in Jago v District Court (NSW) (1989) 168 CLR 23 at 50:
‘... The victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances.’
[44] To similar effect are the observations of Sir John Barry (quoted with approval by McHugh J, Hayne J and Callinan J in Pearce v The Queen (1998) 194 CLR 610 at 622 [39]) concerning the criminal law that:
‘... It must be administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community's generally accepted standards of what is fair and just.’
(See also Richmond Newspapers v Virginia 448 US 555 (1980) at 571-572, per Burger CJ.)”

64 It should be noted in this context that s 22(4) provides that the failure of a court to comply with that section does not invalidate any sentence imposed by the court. However, that does not detract from the relevance of the remarks by the Chief Justice.

65 In R v JCE (2000) 120 A Crim R 18 at 21 Fitzgerald JA said with the concurrence of the other members of the Court:

“[19] A sentencing judge must explain his or her decision. That might require discussion of some other sentencing options with reasons why those options were not adopted. For example, that is implicit in s 5(1) and expressly provided for by s 5(2) of the Crimes (Sentencing Procedure) Act. However, it is obviously unnecessary for every possibility to be discussed in every case. For example, it is unnecessary to explain why community service is not an appropriate sentence for a murderer. Further, the ultimate decision, for example, whether a term of imprisonment should be eight years or nine years, frequently involves a subjective judgment, based on experience as well as information, which cannot be precisely and comprehensively articulated.”

66 The emphatic nature of the opening sentence of the immediately above quoted remarks is of particular significance. It is in accordance with the principle that a sentencing judge must give reasons and, further, there must be contemporaneity between the handing down of the sentence and the expression of the judge’s reasons. The separation of the imposition of the sentence from the expression of the appropriate reasons not only creates a sense of injustice in the mind of all concerned with the sentencing process but also creates significant practical difficulties.

67 Thus, in the instant case the Crown, anxious to avoid delay, filed notices of appeal against what were purported to be sentences imposed on 4 December 2002, although no reasons had thus far been delivered.

68 Mr Stratton submitted, rightly in our view, that such separation tended to bring the sentencing process into disrepute, as it may suggest that the reasons are being moulded to fit in with a predetermined sentence, rather than the other way around. Secondly, he argued, that the sequence of events in this case was capable of giving the impression that the reasons for sentence could be influenced by the Crown appeals. It is not suggested, of course, that his Honour was influenced by the appeals; the significant matter is the perception.

69 This case is an appropriate one for this Court to state in emphatic terms that not only must a sentencing judge give reasons consistent with any statutory obligations as well as the common law obligation, but there must be a contemporaneity between the pronouncement of the sentence and the delivery of reasons, be they oral or written.

70 When the Court speaks of contemporaneity, allowance must be made for the rare case when, for example, due to the exigencies of the circumstances a sentence is pronounced late on one day and reasons are delivered at the first opportunity on the following day. A failure to comply with this requirement bespeaks a miscarriage of justice which renders the sentence liable to be quashed by this Court and the matter remitted to the sentencing court.

71 Upon the assumption which must be made, that his Honour intended to sentence the two female respondents on 4 December 2002 the delay of almost three months in the delivery of reasons cannot conceivably comply with the requirement of contemporaneity. Thus the sentences imposed on CAD and MES must be set aside. The appropriate course then is to remit the matters to the District Court for sentences to be imposed in accordance with the law which necessarily includes the delivery of contemporaneous reasons.

72 For the sake of good order, it should be noted that because the sentencing proceedings relating to CJP miscarried for other reasons, it was not necessary specifically to consider the question of separation between sentences and reasons. However, it goes without saying that the principle is one of general application.

Orders

73 In the matter of CJP:

(1) Declaration that sentences purportedly imposed at the Campbelltown District Court on 4 December 2002 and 28 February 2003 were not according to law and accordingly are quashed.

(2) Pursuant to s 12(2) of the Criminal Appeal Act, 1912 the sentence proceedings in R v CJP [01/21/3265] are remitted to the District Court of New South Wales (Criminal Jurisdiction) for sentence according to law, including the publication of contemporaneous reasons.

(3) The Crown appeal herein is accordingly quashed.

74 In the matter of CAD:

(1) Declaration that sentences purportedly imposed at the Campbelltown District Court on 4 December 2002 and 28 February 2003 were not according to law and accordingly are quashed.

(2) Pursuant to s 12(2) of the Criminal Appeal Act, 1912 the sentence proceedings in R v CAD [01/21/3324] are remitted to the District Court of New South Wales (Criminal Jurisdiction) for sentence according to law, including the publication of contemporaneous reasons.

(3) The Crown appeal herein is accordingly quashed.

75 In the matter of MES:

(1) Declaration that sentences purportedly imposed at the Campbelltown District Court on 4 December 2002 and 28 February 2003 were not according to law and accordingly are quashed.

(2) Pursuant to s 12(2) of the Criminal Appeal Act, 1912 the sentence proceedings in R v MES [01/21/3318] are remitted to the District Court of New South Wales (Criminal Jurisdiction) for sentence according to law, including the publication of contemporaneous reasons.

(3) The Crown appeal herein is accordingly quashed.

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Last Modified: 12/11/2003